In 1972 Kéba Mbaya, President of the Senegal Supreme Court, asserted the "right to development," which he defined as "The recognized prerogative of every individual and every people to enjoy in just measure the goods and services produced thanks to the effort of solidarity of the members of the community."1 This right of development reflects communitarian values indigenous to the African cultures, as well as modern notions of human rights.
In this chapter I will review some of the arguments made for the protection of human rights within traditional African cultures. In addition, I will discuss the recent attempt to develop new concepts of human rights in Africa that draw both on traditional convictions and values that Africans have adopted from Western culture.
Traditional Human Rights
Musa Ballah Conteh suggests that the history of human rights in Africa is best described in three phases. He argues that human rights were present in the first phase of traditional society, although in a context quite unlike that of the West. Mbaya asserts, "Traditional Africa does possess a coherent system of human rights, but the philosophy underlying that system differs from that which inspired [in France] the Declaration of the Rights of Man and of the Citizen."2 The traditional African system of human rights not only affirmed the rights to life and to freedom of expression and association and religious liberty, but also the obligation to provide for those without the means of sustenance. Rights were derived from duties.
The denial of these rights, first by foreign slave traders and then by colonial powers, led to the second phase of the development of human rights concepts in Africa. Beginning with the latter part of the nineteenth century, human rights claims were advanced by African intellectuals on behalf of the black peoples of Africa. As Conteh notes, "the cardinal concern of all six Pan-African Congresses, held between 1900 (when the concept of Pan-Africanism itself was born) and 1974, was the pursuit of freedom and dignity by the 'black man'."3 In this phase there was little concern for universal rights.
The third phase in the evolution of the idea of human rights involves a "synthesis of human and peoples rights." Conteh argues that this began with the adoption of the Universal Declaration of Human Rights and was reinforced by effective decolonization: "The liberal and individual aspects of human rights became progressively integrated or merged with the collective human rights efforts and demands of African peoples, now organized as single independent states in the world society."4 The process continues today.
African scholar Claude E. Welch, Jr. agrees that recognition as well as "protection of human rights certainly existed in the precolonial period."5 He identifies six major sets of rights in traditional society: "the right to life, the right to education, the right to freedom of movement, the right to receive justice, the right to work, and the right to participate in the benefits and decision making of the community."6 He notes that in contrast to European conceptions stressing individual protection, African conceptions have emphasized collective expression. The web of kinship, of family and clan, provided the framework in which individuals asserted their rights and accepted their responsibilities. Understandably then, during colonial rule, "conflicts emerged between indigenous and European conceptions" and therefore, since independence, Africa has been involved in what Welch calls the "redomestication" of human rights.7
Similarly, Yougindra Khushalani, former human rights officer of the United Nations Center for Human Rights in Geneva, argues that traditional Africa "does possess a coherent system of human rights," including the right to life, the right to receive justice, the right to participation, freedom of religion, freedom of association, and freedom of expression.8 She asserts that in traditional African culture the right to life stems from the scrupulous respect which Africans have for their traditional religious beliefs. It includes not only the life of man, but even that of animals. A man kills only from necessity, in self-defense, to provide food, to perform a sacrifice, or to protect another's life or a possession. But respect for life is governed not only by negative rules, such as not to kill, but also by responsibilities. The right to life implies an obligation to provide those who do not possess the means of subsistence with what is necessary to ensure their survival.9
She suggests that human rights, whether individual or collective, were protected by custom rather than by written texts, but often involved well-defined procedures.
In contrast to Western traditions, African procedures have the character of conciliation, arbitration and mediation rather than formal judgment. This conciliatory approach reflects the importance of community cohesiveness in traditional societies as well as the likely existence of kinship ties between the litigants which would render a nonconsensual decision even more disruptive to family and communal life. The traditional system often sought to discover truth directly rather than through the clash of an adversary process in which each side supports its own position before an impartial and disinterested judge.10
In addition, she argues that in traditional society, "besides having the right to select their leaders, Africans had the right to depose them and had methods and mechanisms for resolving issues affecting their societies as a whole."11
Furthermore, Khushalani asserts that traditional African society recognized freedom of movement, the right to work, and the right to education. These rights were not stated in adversarial terms, but were derived from the responsibilities of various members of the community. Thus, she concludes that traditional African society recognized the rights of both individuals and groups and through consensual procedures provided "an almost sacred protection" of fundamental human rights.12
Iba Der Thiam argues that the precolonial Wolof societies in Africa recognized the freedoms of assembly, of association, and of expression as well as the rights to own property and to work, to education and to one's culture, to privacy, to collective solidarity, and to go to law. He also argues that Islam reinforced most of the norms already in existence in Africa, but that the slave trade and colonization of the Senagambian kingdoms undermined the rights of the people.13
Chris Mojekwu reports that in traditional African culture all able-bodied members shared both the responsibility of maintaining and protecting their community and the right to use its resources. He argues that:
Human rights as a basic concept was very much present in precolonial African society well before the eighteenth and nineteenth centuries. The difference was that the concept of human rights in Africa was fundamentally based on ascribed status. It was a person's place of birth, his membership or belonging to a particular locality and within a particular social unit that gave content and meaning to his human rights—social, economic, and political.14
Thus, in traditional Africa a person without membership in a social unit, an outcast or a stranger, "lived outside the range of human rights protection by the social unit."15
Mojekwu says that the modern African states are the result of European intervention "which destroyed the precolonial African authority structure and choked its concept of human rights."16 He asserts that the right of self-determination so clearly established through United Nations resolutions and covenants should be understood as the right of a people to constitute itself rather than as the right of a state to choose its own political and economic system, a position clearly in conflict with both orthodox liberal and socialist doctrines. Finally, rather than shaping African realities to Western models, he affirms that the "African view of communal rights" can employ "African flexibility to accommodate Western conceptions in rights."17
Paulin J. Hountondji suggests that generally both the originality and coherence of Western civilization is overestimated:
Europe certainly did not invent human rights, any more than it invented the idea of human dignity. It was simply able to conduct on this theme—and this was its merit—systematic research which took the form of an open progressive discussion. It thus produced, not the thing, but discourse about the thing, not the idea of natural law or of human dignity but the work of expression concerning this idea, the project of its formulation, explanation, analysis of its presuppositions and its consequences, in short, the draft of a philosophy of human rights.18
He argues that the task in African studies is not to look for elements comparable to Western society but to understand African societies more clearly, "in order better to appreciate and transform them."19 Therefore, he calls on both Africans and Westerners, in Paul Ricoeur's words, "first to realize the relativity of their pretensions, then to qualify their relativism itself by reaching down to the root of the struggle for human rights—simply humanity itself."20
Lakshman Marasinghe argues for traditional notions of human rights in much the same way:
It is a popular myth to assume that traditional societies of Africa are devoid of any conception of human rights and that when one refers to human rights the modern societies of the West are the exclusive custodians of this universal concept.21
He cites the attack by American political scientist Jack Donnelly, who argues that what are described as human rights in traditional African and Asian society are merely privileges granted by a ruling elite: "most non-Western cultural and political traditions lack not only the practice of human rights but the very concept. As a matter of historical fact, the concept of human rights is an artifact of modern Western Civilization."22 Marasinghe replies that Donnelly's position is shown to be false by empirical research demonstrating that there is a greater chance of enforcing human rights in traditional societies than in nontraditional societies.23
Constitutions protecting human rights can be ended, suspended, or amended. The extended family, on the other hand, is a permanent institution which must exist as long as the individuals who form a part of it exist. To that extent the vulnerability of the traditional conceptions of human rights is minimized.24
Thus, he asserts that in traditional African culture there is, in fact, "enormous satisfaction as to the basically democratic way in which the society protects its own human values."25
Josiah A. M. Cobbah suggests that these African values may be helpful in developing international human rights norms for the Third World as a whole:
Ultimately what is important to an international community of cultures is for all peoples to feel that all voices are genuinely being heard in the human rights discussion. I have attempted to point out that Africans do not espouse a philosophy of human dignity that is derived from a natural rights and individualist framework. African societies function within a communal structure whereby a person's dignity and honor flow from his or her transcendental role as a cultural being. Within a changing world, we can expect that some specific aspects of African lifestyles will change. It can be shown, however, that basic Africentric core values still remain and that these values should be admitted into the international debate on human rights.26
The issue is not whether Western lifestyles should be adopted by others, but whether "cultural values" in Africa and other parts of the Third World "provide human beings with human dignity."27
African Human Rights Charter
In 1981 the African States in the Organization of African Unity (OAU) took the first step in establishing a distinctively African perspective on human rights by approving the African Charter on Human and Peoples' Rights.28 The charter states that the members of the OAU reaffirm "their adherence to the principles of human and peoples' rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations"; and establish an African Commission on Human and Peoples' Rights that shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.29
In the Charter the African states take "into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples rights."30
Richard Gittleman notes that in the protection of human rights, "the Charter reflects a strong preference for mediation, conciliation, and consensus as opposed to confrontation or adversarial procedures."31 In this Charter clearly African governments are seeking to embrace both Western and traditional notions of human rights—to claim rights for Africans that are universal and yet rooted in the traditions of the African peoples.
Thus, Africans commonly affirm that "the core elements of the concept of human rights are not alien to non-Western cultures."32 As Kenneth Kaunda proclaimed, while president of the Republic of Zambia:
Human dignity is a concept which is as old as man himself. It is basic in every human life. It refers to the intrinsic worth of man; it underlines his importance as the center of creation, probably the highest expression of God's image in the whole of creation and the pivotal agent in the ceaseless stream of events in our changing environment. In a large measure I think it is true to say that this quality, which is inherent in man and not imparted to him by any human action, makes him different from other animals. It is the most important element among the qualities which confer upon man the inalienable rights which have since been defined in more precise and unequivocal terms, in the Universal Declaration of Human Rights, the principles of which have been incorporated in the Charter of the United Nations.33
Kaunda challenges us to prove by our actions "our faith in the principles governing our conduct in fostering harmonious relations among peoples and nations" and "our faith in the United Nations and its Charter. . .."34
The histories of Africa and the North American and Western European continents are very different. Until recently, human rights law was articulated in terms derived almost entirely from the West. However, human rights instruments are now being promulgated that draw heavily on the traditional values of African and other cultures of the Southern Hemisphere.
Based on the African experience, Mbaya argues that the right to development, although only recently asserted, is a "fundamental human right, without which life in a society is not worth living."35 His voice, and all those voices crying out for justice from Africa and the other Southern continents of the Third World, deserve to be heard.
1 Quoted in Development, Human Rights and the Rule of Law, Report of a conference held in The Hague, 27 April-1 May 1981, International Commission of Jurists (Oxford: Pergamon Press, 1981), 5. Mbaya first asserted this right in an address to the International Institute of Human Rights in Strasbourg, France.
2 Musa Ballah Conteh, "Human Rights Teaching in Africa: The Socio-Economic and Cultural Context," in Frontiers of Human Rights Education, ed. Asbjørn Eide and Marek Thee (New York: Columbia University Press, 1983), 58. Rhoda Howard analyzes various human rights comparisons to which Africa is often subjected in "Evaluating Human Rights in Africa: Some Problems of Implicit Comparisons," Human Rights Quarterly 6, no. 2 (May 1984):160-79.
3 Ibid., 59.
5 Claude E. Welch, Jr., "Human Rights as a Problem in Contemporary Africa," in Human Rights and Development in Africa, ed. Welch and Ronald I. Meltzer (Albany: State University of New York Press, 1984), 11.
6 Ibid., 16. Thomas M. Franck writes: "It is certainly not to a jurisprudential desert that the sturdy oak of the common law has been transplanted. Particularly in the area of procedural human rights, much that the common law posits is also indigenous to tribal or 'native' customary law." Franck, "Introduction: Western Law in Non-Western Nations," in Human Rights in Third World Perspectives, vol. 1 (London: Oceana Publications, Inc., 1982), xvi.
7 Ibid., 11.
8 Yougindra Khushalani, "Human Rights in Asia and Africa," Human Rights Law Journal 4, no. 4 (1983):415.
9 Ibid., 415-16.
10 Ibid., 416-417.
11 Ibid., 417.
12 Ibid., 418.
13 Iba Der Thiam, "Human Rights in African Cultural Traditions," in Human Rights Teaching 3 (Paris: UNESCO, 1982), 4-10.
14 Chris C. Mojekwu, "International Human Rights: The African Perspective," in International Human Rights: Contemporary Issues, ed. Jack L. Nelson and Vera M. Green (Stanfordville, N.Y.: Human Rights Publishing Group, Earl M. Coleman Enterprises, 1980), 86.
15 Ibid., 86-87.
16 Ibid., 88. Dunstan M. Wai also argues that the authoritarian character of modern African governments is the result of colonial exploitation which disrupted the protection of human rights by traditional forms of authority and decisionmaking. Wai, "Human Rights in Sub-Saharan Africa," in ¯Human Rights: Cultural and Ideological Perspectives¯, ed. Adamantia Pollis and Peter Schwab (New York: Praeger Publishers, 1979), 115. See Warren Weinstein, "Africa's Approach to Human Rights at the United Nations," Issue: A Quarterly Journal of Opinion 6, no. 4 (Winter 1976):17 and Richard F. Weisfelder, "The Decline of Human Rights in Lesotho: An Evaluation of Domestic and External Determinants," Issue: A Quarterly Journal of Opinion 6, no. 4 (Winter 1976):23.
17 Ibid., 93.
18 Paulin J. Hountondji, "The Master's Voice—Remarks on the Problem of Human Rights in Africa," in Philosophical Foundations of Human Rights (Paris: UNESCO, 1986), 323.
20 Paul Ricoeur, "Introduction," in Philosophical Foundations of Human Rights, 28.
21 Lakshman Marasinghe, "Traditional Conceptions of Human Rights in Africa," in Human Rights and Development in Africa, ed. Claude E. Welch, Jr. and Ronald I. Meltzer (Albany: State University of New York Press, 1984), 42.
22 Jack Donnelly, "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights," American Political Science Review 76 (1982):303. Quoted in Human Rights and Development in Africa, 42. Donnelly's general Western approach is reiterated in "Cultural Relativism and Universal Human Rights," Human Rights Quarterly 6, no. 4 (November 1984): 401. His position is strongly criticized by Josiah A. M. Cobbah in "African Values and the Human Rights Debate: An African Perspective," Human Rights Quarterly 9, no. 3 (August 1987):309-31.
23 Lakshman Marasinghe, "The Relationship between the Social Infrastructure and the Working of the Legal System: A Case Study on Access to Justice in Northern Nigeria," Verfassung und Recht in Ubersee 14 (Hamburg: Forschungstelle fur Volkerrecht und auslandishes "ffentliches Recht, 1981).
24 Lakshman Marasinghe, "Traditional Conceptions of Human Rights in Africa," in Human Rights and Development in Africa, 43.
25 Ibid. Asmarom Legesse argues that the collective ownership of land by African peoples such as the Amhara of northern Ethiopia, who distribute the use of land by inheritance equally to sons and daughters from both their mothers and fathers, "enshrines the most basic idea of 'human rights'." Legesse, "Human Rights in African Political Culture," in The Moral Imperataives of Human Rights: A World Survey, ed. Kenneth W. Thompson (Washington, D.C.: University Press of America, 1980), 126.
26 Josiah A. M. Cobbah, "African Values and the Human Rights Debate: An African Perspective," Human Rights Quarterly 9, no. 3 (August 1987):331.
28 See "African Charter on Human and Peoples' Rights," in Human Rights Teaching 3 (Paris: UNESCO, 1982), 11-17.
29 African Charter on Human and Peoples' Rights, Preamble and Chapter IV, Article 60, in Human Rights in International Law: Basic Texts (Strasbourg: Directorate of Human Rights, 1985), 207 and 223. However, Asmarom Legesse argues that the Universal Declaration of Human Rights is universal only in intent: "If Africans were the sole authors of the Universal Declaration of Human Rights, they might have ranked the rights of communities above those of individuals. . .." Legesse, "Human Rights in African Political Culture," in The Moral Imperatives of Human Rights, 128.
30 Ibid., 207.
31 Richard Gittleman, "The African Convention of Human and Peoples' Rights: Prospects and Procedures," in Guide to International Human Rights Practice, ed. Hurst Hannum (Philadelphia: University of Pennsylvania Press, 1984), 161. See Gittleman, "The Banjul Charter on Human and Peoples' Rights: A Legal Analysis," and Edward Kannyo, "The Banjul Charter on Human and Peoples' Rights: Genesis and Political Background," in Human Rights and Development in Africa, 152-76 and 128-51. See also B. Obinna Okere, "The Protection of Human Rights in Africa and the African Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems," Human Rights Quarterly 6, no. 2 (May 1984):141-59, and James C. N. Paul, "Human Rights and Legal Development: Observations on Some African Experiences," in International Human Rights Law and Practice: The Roles of the United Nations, the Private Sector, the Government and Their Lawyers (Philadelphia: International Printing, 1978), 23-37.
32 Edward Kannyo, "Human Rights in Africa: Problems and Prospects," a report prepared for the International League of Human Rights (May 1980), 4. R. Ogbonna Ohuche, professor of education at the University of Nigeria, writes in his foreword to Nwachukwuike S. S. Iwe's history of human rights: "Here in Nigeria, we have for sometime been conscious of the expectation of the Black man wherever he may be that the nations should face the challenge of restoring the dignity of man fouled up by years of slavery and centuries of colonialism, imperialism and oppression. Our successive Governments have re-stated time and again our national belief in the fundamental rights of man." In Iwe, The History and Contents of Human Rights: A Study of the History and Interpretation of Human Rights (New York: Peter Lang, 1986), 6.
33 Kenneth O. Kaunda, The Imperative of Human Dignity, address at the inaugural session of the Non-Governmental Organizations International Conference on Human Rights (Paris: 15 September 1968), 4. See Josiah Cobbah and Munyanzwe Hamalengwa, "The Human Rights Literature on Africa: A Bibliography," Human Rights Quarterly 8, no. 1 (February 1986):115-25.
34 Ibid., 12.
35 Quoted in Development, Human Rights and the Rule of Law, 5.
From Faith in Human Rights: Religious Support for a Global Struggle (Washington, DC: Georgetown University Press, 1991).